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Deep Water Read: 11th Circuit Court Appeal

August 4, 2011

The U.S. Court of Appeals for the Eleventh Circuit’s June 2011 finding simply concludes: the Corps misinterpreted their own authority to manage Lake Lanier and now has one year to reconsider Georgia’s past requests to draw additional water directly from the artificial reservoir.  Georgia’s successful appeal of Senior U.S. District Court Judge Paul Magnuson’s 2009 ruling, however, does not end the tri-state water war or make metro Atlanta’s water problems go away.  As Steve O’Day at Smith Gambrell & Russell explains, the ruling puts “extra time on the clock.”

The appeal: In my interpretation of evidence discussed in the appeal, nothing suggests that Lake Lanier was specifically authorized to supply water for City of Atlanta in the 1940s or the entire metro Atlanta region today.  In fact, the appeals court’s interpretation of a thicket of Congressional testimonies, legislative authorizations, and institutional studies reads similarly to Magnuson’s order, which determined Congress primarily authorized Buford Dam for hydropower, navigation, and flood control.

New interpretive twist: The appeals court judges’ justification for the water supply authorization hangs precariously on a 1946 Corps document.  In an interesting interpretation, the judges declared Buford Dam’s planned releases, as defined in Brigadier General James B. Newman’s 1946 report, eventually constituted the basis for Congress’ water supply authorization.  Newman designed water releases to “insure” and “ensure” a steady water supply for the City of Atlanta’s drinking needs, and based on my reading of the document, for “sanitation,” for “public health,” and “to prevent damage to fish.” [pp. VIII, IX, and 34 for example]

Nexus: Newman also determined the dam would help regulate flows for the Georgia Power Company’s now-retired Atkinson coal-fired steam plant.  A close read of Newman’s report makes it clear that his engineers calculated Buford’s releases not only for hydropower generation, but also in the context of the 1941 drought that compromised the Chattahoochee River’s flows and thus the city’s water supplies and the company’s energy-generation operations.  According to the Newman Report and Atlanta Constitution articles from 1941, Atlanta residents and consumers were asked to reduce personal water and energy use “to conserve the inadequate supply” of water.  Georgia, it seems, has a legacy of water scarcity that underscores the critical energy-water nexus.

Back to the appeals court’s interpretation: Because the Newman Report connected Buford’s releases with the Chattahoochee’s flows and the City of Atlanta’s water consumption, water supply was a project benefit.  Therefore – but not clearly stated by the judges – the reservoir itself is available for water supply storage and purposes.  It’s one of a few slippery interpretations in the ruling; one editorial goes so far as to call the appeal “judicial activism.”

Let’s backup a moment.  Based on my reading of national Flood Control Act and Rivers and Harbor Act history (1930s through 1950s), the primary reason to build the nation’s hundreds of multiple purpose projects such as Buford Dam was to deliver what I call the ‘holy trinity’ of benefits: hydropower, flood control, and navigation.  Irrigation was also big deal for the arid West’s constituents.  The secondary – “incidental” purposes in the language of the day and in the American South – included recreation and water supply.  And of course, if you read around the legislative acts and project histories – in newspapers, speeches, and correspondence – local boosters blurred the lines between the authorized, incidental, and un-authorized benefits.  As such, the casual observer might have been led to believe their tax dollars were buying everything under the sun.

This is one reason I believe Congress considered Lake Lanier’s water supply an “incidental” – or secondary – benefit for Atlanta in the 1950s.  Other reasons?  ‘Atlanta,’ according to Newman’s report and the Metropolitan Planning Commission (predecessor to today’s Atlanta Regional Commission), constituted the City of Atlanta plus Fulton and DeKalb counties.  These communities drew their water directly from the Chattahoochee River below Buford Dam.  Gainesville (Hall County) and Buford (Gwinnett), which had originally drawn water from the pre-dammed Chattahoochee River, were the only two regional communities legally allowed to withdraw water directly from the new reservoir as compensation for losing their old raw water intakes to Lanier’s rising waters.

By the 1970s things changed.  ‘Atlanta’ mushroomed into the ‘metro Atlanta region,’ and Gwinnett and other communities coveted Lanier’s water.   Today the megalopolis includes territory governed by a dizzying number of city, county, and regional entities such as the Atlanta Regional Commission (established in 1971; ten counties today) and the Metropolitan North Georgia Water Planning District (2001; fifteen counties).

In the 1950s, when political, business, and bureaucratic operatives were advancing the dam and reservoir, did anybody really foresee the explosive and sprawling growth of the 1970s and 1980s?  Probably not.  But the judges insist – based on thin evidence – that Congress (circa 1951) did.  Therefore, in the court’s opinion, Lanier was to serve as the region’s municipal, industrial, and commercial water cooler.

The legal battle over what constitutes the congressionally authorized purpose for Buford Dam and Lake Lanier will likely continue.  Alabama’s Governor Bentley has vowed to appeal the 11th Circuit Court’s decision.  If that happens, the case could be only one more decision away from heading to the U.S. Supreme Court.

-Chris Manganiello

5 Comments leave one →
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